it refers to published decisions. Only 9 percent of our decisions in
this area are published.
Beyond that, any attempt to indicate that our cases in this area
are aeclining doesn't take into account those cases which we have
a right to review from the regional director's decision is not sought.
It doesn't take into account the stipulations and agreements that
are entered into at the local level. I want to see more of
Chairman Talent. Excuse me. If you wouldn't mind me â and
I'm interrupting. I'm not at all trying to â Ms. Velazquez was going
to be here in a couple minutes.
Mr. Gould. Yes.
Chairman TALE^^^. It would be more convenient to go to her
when she comes. I'm afraid you're actually going to end a minute
or two before she gets here and we can end up balkanizing this
I'm interested in that point you just made. So, perhaps if you
wouldn't mind going on a little longer, elaborate for me and for the
Subcommittee what is a process that obviously most people are not
aware of. You mentioned unpublished decisions.
Mr. Gould. Yes, sir.
Chairman Talent. Would you mind talking a little bit about how
these decisions are made at the regional level, when they come to
the board, what an unpublished decision is and how much you
know about your own unpublished decisions. I mean, would you
mind doing that?
I think it would be useful and it would fill in the time here. I
would have to go into that anyway.
Mr. Gould. Surely. The bulk of our cases in this representation
area, and this has been the subject of much discussion and some
consternation on the part of many people, are notâdo not appear
in our bound volumes.
I might say that probably in the coming years there will be even
a smaller percentage that will appear in our bound volumes be-
cause one of the things we look at as board members is cost. It
costs us money to print these decisions in bound volumes.
Now, most of our cases, whether they be representation cases or
unfair labor practice cases, are dealt with at the local level in the
various regions. We have a number of regions, more than 30 re-
gions throughout the United States.
Most of our cases, our representation cases as well as our unfair
labor practice cases, are dealt with through agreement or through
a regional director decision resolving the issue in dispute.
It's the imusual case in which a right to review is sought and
once the right to review is sought and once we take action, it's the
unusual case in which we â as I have indicated, more than 90 per-
cent of the cases we don't publish. We don't have data on the num-
ber of cases where the single versus multiple location issue arises
at the local level.
Staff in the process of getting ready for the advanced notice in
1994, in June 1994, looked at 26 cases which came to our attention
in fiscal year 1994, We took from those cases some of the data that
I have referred to, both in my written statement and here today.
Chairman Talent. So, summarizing just really for the Sub-
committee, if there is a question raised by one of the parties below,
they can ask for a hearing. The regional director will have a board
agent hold a hearing.
Mr. Gould. Yes, a hearing officer.
Chairman TALE^^^. The regional director will make a â the hear-
ing officer. The regional director will make a decision and then ei-
ther party can appeal that or seek review at the board level.
Mr. Gould. That's correct.
Chairman TALENT. Of course in most cases, like in any other
case, they don't.
Mr. Gould. That's right.
Chairman Talent. So, in most cases, even when there is a deci-
sion, they don't seek appeal. In cases where they do, the board will
often make its decision in an unpublished order. That's right?
Mr. Gould. That's correct, in the overwhelming number of in-
stances, Mr. Chairman.
Chairman Talent. A couple of questions, and then I want Ms.
Velazquez to have time to get settled here. I'm interested in this
also. What percentage â how many published opinions does the
board have on any subject in the course of a year, approximately?
I mean, how many hundreds of them would you have?
Mr. Gould. You know, here
Chairman Talent. Any idea? Any of your staff know?
Mr. Gould. Here I'm going to see if I can turn to
Chairman TALEi>rr. Sure. Feel free.
Mr. Gould [continuing], my staff here. I told them that I
wouldn't try to do this and put them on the spot rather than me,
but I don't really know the precise figure.
Chairman Talent. Well, that's
Mr. Gould. The executive secretary advises me about 900 deci-
Chairman Talent. About 900?
Mr. Gould. Yes.
Chairman Talent. It does surprise me that the board would not
internally have some way of determining, not â the regional direc-
tor level, I can understand the difficulty of that, but of how many
of its own unpublished decisions, which after all have gotten to
So even if you're not publishing them for the public and the
Labor Law Bar to see, I am surprised that you cannot internally
say, OK, X percent of these decisions related to unit question or
single-unit types of questions. Is that â I mean, why is that so dif-
ficult for the board to do? I mean, again, you can â I understand
Mr. Gould. Well, yeah. They often involve a large number of is-
sues. They mav come to us on location, on issues, on supervisory
issues we simply don't have at present.
I mean, the very first question I asked when we began this proc-
ess was, I wanted to go back really since the time of Chairman
McCullough or beyond, and find out what the percentage of cases
was that came to us in Washington that involved this issue. We
simply, by virtue of the wide variety of issues involved, don't have
a retrieval system which permits us at this juncture to do that.
Chairman Talent. OK.
Mr. Gould. I hope in the future we do.
Chairman Talent. I've been filling in a subject I was going to
ask about anyway, pending the arrival of our distinguished ranking
member of this Subcommittee, Ms. Velazquez, who I will now rec-
ognize for an opening statement.
Why don't you, in view of the fact that I have started question-
ing, why don't you just go ahead after that and ask any questions
that you feel appropriate.
[Mr. Gould's statement may be found in the appendix.]
Ms. Velazquez. Thank you, Mr. Chairman. I just want to really
thank you for your tolerance and understanding. I was on the Sen-
ate side testifying before a Committee.
Mr. Chairman, I want to thank you for calling this hearing on
the NLRB single location bargaining unit rulemaking process. I
will ask for unanimous consent to include my remarks in the
Chairman Talent. Without objection.
Ms Velazquez. Thank you. The issue of the NLRB's proposed
rule is of great importance to workers across this country. The mis-
sion that the NLRB is charged with, after all, ensuring the fair
treatment of workers, as Members of Congress, we must ensure
that any new measures adopted by the board are true to that mis-
I do, however, believe that if what we are trying to do is provide
a full examination of this issue for both the Members and the pub-
lic, we would have been better served to wait until the coming pe-
riod had closed.
This would have allowed us to fit all the pieces in place before
addressing this important matter. This rule comes on the heels of
the lessons that the NLRB has learned during its reexamination of
how employees in the health care industry will be allowed to orga-
Building on these lessons, Mr. Gould and the NLRB have crafted
a balanced rule that allows workers the ability to organize without
severely hampering businesses. This proposed rule goes a long way
in clearly defining what is an acceptable bargaining unit.
It saves money and time for small business owners and employ-
ees and allows both to focus on the important task of creating a
successful business. This measure comes at a critical point.
As the administration grapples with the changing budget envi-
ronment and the NLRB deals with a proposed 30-percent cut, Mr.
Gould and his staff have used the rulemaking process to reduce
costs, streamline Government and show that smaller Grovernment
can be more efficient.
I am sure that today many of our witnesses will question why
we need this rule. I will tell you that if you want smaller, more effi-
cient Government, then we must take steps to avoid costly, drawn-
At a time when this Congress is calling on various agencies to
do more with less resources, it is gratifying to see the board rise
to the challenge without sacrificing its commitment to its mission.
The NLRB is to be congratulated for its work on this rule and
for its efforts to comply both with its duties as outlined in the Na-
tional Labor Relations Act and with the fiscal impositions of this
I look forward to the insights of all the witnesses, and I'm sure
it will be a lesson to us all on how our votes on the budget and
the streamlining of Government shape the policies in our local com-
munities. I would like to ask some questions to Mr. Gould.
Chairman Talent. The gentle lady is recognized for questions.
Ms. Velazquez. Mr. Gould, under existing NLRB case law, can
unions organize single locations of employers?
Mr. Gould. Yes, Congresswoman Velazquez, they can do so. In-
deed, as I indicated to the Chairman earlier, our rules â and I use
this term loosely through the adjudication process â usually allow
them to do so because there is a presumption in favor of a single
Ms. Velazquez. So, in fact, what these proposed rule does is just
codify existing law on single location units, correct?
Mr. Gould. It does, Congresswoman,
Ms. Velazquez. Is this rule in any way a significant departure
from current case law?
Mr. Gould. It is not a departure from case law, as I have indi-
cated to the chairman.
Ms. Velazquez. Well, do you foresee that it will have a signifi-
cant effect on the actual outcome of cases?
Mr. Gould. I do not. I think that in the very substantial number
of cases today, as I estimated to the Congressman Talent, 70 per-
cent of the cases we find a single unit and that statistic is some-
what skewed by a number of cases in the 1980's, where we began
to move away from that.
My estimate is that we would find a single unit in roughly speak-
ing the same number of cases that we find a single unit today
through the adjudication process. The one thing that has changed
is that we can do it more efficiently and quickly and speak in terms
which is understandable, which are understandable to the average
Ms. Velazquez. Other than budget constraints, is it not the case
that the NLRB decided to draft; this rule in response to what could
be described as a pattern on the part of businesses to file claims
with the board as a stalling tactic in labor negotiations?
Mr. Gould. Well, Congresswoman Velazquez, this does not usu-
ally arise out of labor negotiations as such. Our concern here was
that there â as there seems to be in so much â so many areas of our
life and in labor law, there is too much litigation, too much reliance
upon lawyers, when we can do the same job more efficiently â and
dare I say it with all the lawyers here present? â without lawyers.
Ms. Velazquez. Mr. Gould, in our next panel of witnesses, we
will be joined by a representative from the National Council of
Chain Restaurants. In your remarks you make reference to the de-
cision on the Red Lobster chain.
Could you tell us how often such units are found appropriate in
Mr. Gould. Well, we know that in a very substantial number of
those cases, the single units are found to be appropriate in res-
For instance, in a very recent decision which was signed by my
predecessor. Chairman Stevens, and by member Rodabout, two of
President Bush's appointees, a single unit was awarded in the Jolly
Roger Hawaii case where the employer â I think that more than 20
restaurants were in the area and one unit was fashioned, even
though I think other restaurants were less than a mile away from
the first restaurant where representation was sought.
There are a number of cases that come before us and most of
them â many of them, if not most of them, seem to result in a sin-
gle unit finding. Again, there would be no difference in the ap-
proach that we are taking.
Actually, in 70 percent, I am advised here by staff", 70 percent
of the restaurant cases a single unit is found. Again, that figure I
think goes back to 30 years. Again, that takes into account in
1980's where the board was moving away from, for a variety of rea-
sons, single units.
Ms. Velazquez. So, Mr. Gould, would you say then that the
number of cases in this area amount to more than just a handful?
Mr. Gould. Indeed.
Ms. Velazquez. How long have you been engaged in this rule-
Mr. Gould. Well, we have been engaged in a formal way in al-
most 2 years, Congresswoman. Really, we have been at work at
this ever since I came to office 2 years ago today. We have been â
we published our advanced notice of rulemaking on June 2, 1994.
Ms. Velazquez. Mr. Gould, the proposed rule states that busi-
nesses can still file a case with the NLRB under extraordinary cir-
cumstances. Could you elaborate on this?
Mr. Gk)ULD. Yes, I can. There is always a right to a hearing. The
employer is entitled to a hearing on two issues: Whether the rule
applies to that particular employer in the first instance, and sec-
ond, whether there are extraordinary circumstances which justify
not making the rule applicable to that employer.
We assume, just as we assume today, with adjudication that
most of the cases will result in a single unit. There is no change
in that regard. But there is an opportunity for the employer to
show that there is something idiosyncratic about its enterprise,
which would make it unworkable or undesirable for the rule to
Ms. Velazquez. Mr. Gould, in yesterday's Washington Post there
was an article on this hearing regarding this, and some business
groups claim that there still will be quite a bit of litigation as a
result of this clause. In fact, that very argument is made in this
article. Could you please comment on this?
Mr. Gould. Well, I would imagine that, just as was the case in
acute health care, that some employers will challenge the validity
of this rule. I have very little doubt about our ability to prevail.
I think that we will succeed, just as the board succeeded in acute
health care. So, in that sense, there may be some litigation. But
once the rule is in place and once the courts have affirmed it, as
they will, I have no doubt that it will cut out litigation just as we
have cut out unnecessary litigation and reliance upon lawyers in
acute health care.
Ms. Velazquez. Thank you.
Thank you, Mr. Chairman.
Chairman Talent. I thank the lady. Let me just follow up on one
thing Ms. Velazquez asked. You began this rulemaking 2 years ago,
approximately. Isn't that right?
Mr. Gould. Well, I â ^yes, sir. I began
Chairman Talent. The board.
Mr. Gould [continuing], working on it in Washington here 2
years ago and we published our advanced notice of rulemaking on
June 2, 1995, almost 2 years ago now.
Chairman Talent. That's of course before the major restrictions
on the board's budget that Congress passed this year.
Mr. Gould. That's correct, sir.
Chairman Talent. I understand the fiscal climate has been tight
for a number of years.
Mr. Gould. I might say, if I could, Mr. Chairman, that my an-
swer to one of your earlier questions is a little incomplete. When
you asked me about our ability to identify cases that involve single
and multiple locations, we, at my urging, we established a Commit-
tee that would allow us to be more effective in identifying cases
even where a number of issues are involved through the new tech-
nology that is becoming available to private industry.
It's a so-called Cats project. But the budget restrictions that have
been imposed upon us have made it impossible for us to continue
with the Cats project. I'm advised that in the current budgetary en-
vironment it's unlikely that we will be able to, notwithstanding my
interest in doing so, identify cases more effectively than we are
doing at present.
Chairman Talent. Well, it might be worthwhile following upon
that to make sure that you have enough funds for that project as
this rulemaking goes on. So, we certainly would take that under
Mr. Gould. We are urging the Congress always to listen to our
requests about budget and your support and influence in this re-
gard, Mr. Chairman, would be appreciated.
Chairm.an Talent. Mr. Chairman, I would not think very much
of the head of an Agency who didn't believe that his Agency was
entitled to more money from the Congress. It would just simply in-
dicate that you didn't think your job was important.
We are going to follow, as we always do here, the rule of rec-
ognizing people as they come. I'm going to do that, notwithstanding
the fact that my very distinguished friend and colleague from Mis-
souri has come bv the hearing.
Every personal inclination tempts me to recognize him first. But
out of deference to the established rule, I am going to go ahead and
recognize my good friend, Mr. Longley, for 5 minutes of questions.
Mr. Longley. I would certainly concur with your respect, concur
to your respect for the Representative from Missouri.
Mr. Gould, I want to begrin with a couple comments. First, I am
going to have to leave this nearing because I've got two other hear-
ings being conducted simultaneously. But I will have a member of
my staff here.
I want to begin by accepting your characterization that this is a
tentative rule and there is a rulemaking process under way, and
comments, et cetera.
But to be very, very blunt, I want to pick up on your comments
in your testimony, particularly your reference to your response to
the letter to Chairman Talent, wherein you indicated, referring to
Mr. Talent's letter, that Mr. Talent had stated that the vast major-
ity of business owners are not regular readers of the Federal Reg-
You then went on to say, I would be grateful if Mr. Talent could
supply you with the names of such employers, and that you would
personally undertake to send copies of your notice to them so that
they are able to participate in your proceeding.
With all due respect, I think you totally missed the point that
he was making. That is, the underlying question is whether or not
these businesses should even be worried about these proceedings,
or whether the statute was written in a manner to encompass
I have to suggest that, very candidly â and I'm speaking with re-
spect to the small businesses in my own district â very few of them
can afford the luxury of first, receiving a notice, second, they won't
understand it, third, they can't afford to hire a lawyer to deal with
it for them, and fourth, even with the right to a hearing, they are
being drawn into a process which I'm not sure you really intended
to bring â to involve them in.
I want to just pick up on the Washington Post article. There was
something in it that got my attention. We're talking particularly as
it relates to fast food restaurants.
I have some experience working in a fast food restaurant. When
I was a teenager, I worked in one. I went through the training, and
like most teenagers I came and spent a couple weeks, couple
months, and then I was gone.
Most of the fast food restaurants in my district have an ex-
tremely high turnover rate. What you are in effect suggesting or
what the press accounts would appear to suggest about the rule
that's being considered is that some of these restaurants could be
consciously or even inadvertently drawn into a legal quagmire, reg-
ulatory quagmire, that they have no interest and very frankly the
statute had no intention to involve them in.
Again, with respect to the fact that â and I have to respect the
fact that you are attempting to appropriately fashion rules to deal
with the intentions of the statute, I've just got to question to what
extent, going back to your comments, that we are or you are pro-
posing to involve scores of businesses that frankly may have little
or no â there may have been little or no intention on the part of the
Congress to draw into this scheme.
Do you understand what I'm questioning?
Mr. Gould. I do, sir, and I appreciate your comments, Congress-
man Longley. I want to tell you, if I haven't made myself suffi-
ciently clear in this regard, that this rule is designed to assist
small business. This rule will make the life of small business much
more to â than large companies which can afford counsel, more â
will improve the position of small business.
Because small business, by virtue of its economic situation, are
the last people who can afford counsel. Under the existing system
you have to have counsel. It's because it's a crap-shoot.
There are so many different criteria that the board is looking to.
The criteria â and this is the important point, Congressman â are in
their application inherently vague. The board never tells people
where they are, how they stand.
What we have done through this rule for the first time is to say,
"Mr. Small Businessman, you don't have the resources to employ
high-priced counsel. You can sit down and see and read this thing
for yourself. You don't need to employ, as you do under the present
system, high-priced counsel to deal with this problem,"
Now, the statute. Congress has spoken
Mr. Longley. Mr. Gould, could I just
Mr. Gould. Well, I just want to say. Congressman, that this
Congress, that the Congress has spoken and made this law applica-
ble to restaurants and fast food franchises, and the rest.
That's not my decision. The other point is that if this rule should
not be applicable to particular industries, as I said to Mr. Chair-
man, the Chairman, that then that is something we want to know
If there are idiosyncratic features of this industry which make it
so different from other industries that the rule ought not to be
made applicable or the rule ought to be fashioned in a different
way, well, that's something that I want to know about and I think
the other board members want to know about in coming to this
Mr. Longley. Mr. Gould, if I could just interject. I respect what
you are trying to tell me. But I still don't think that you get the
point. I will give you a specific example.
I won't mention the business, but it's a small business in my
State. It employs 150 people. The owner of that business game me
a list of the 54 local, State and Federal agencies that he reports
I have got to tell you that, yes, you may be a nice guy, and I take
it for granted that you are. But you are now proposing that you be
perhaps number 55 that he reports to.
Mr. Gould. No one is
Mr. LoNGLEY. I've got to tell you something else. I understand
the procedures. But wnat is in effect the issue from my standpoint
is the question of whether or not it is appropriate for an Agency
of the Federal Government to be expanding its authority or ex-
panding its jurisdiction in manners that add to the burden.
Because I've got to tell you, this one business made it abundantly
clear to me that if he has any more Federal or State or local agen-
cies to report to, that it's going to pay a price in jobs. Because he
has to sit down and take responsibility for the legal jurisdiction
that is being asserted over him by a Federal Government that is
bending over backwards tiying to involve itself in his affairs.
Frankly, he's got a choice. Does he spend his time and his re-
sources complying with the neat little procedures and systems that
are being set up in Washington, or does he create jobs?
Mr. Gould. Congressman
Mr. LoNGLEY. In many cases jobs aren't being created. I'm con-
vinced that we are losing thousands, if not hundreds of thousands
or millions of jobs based on ill-considered regulatory acticyis by
Federal, State, and local government that don't respect th'e fact
that many people in business are scratching to hang on, to survive.
They do not have the time to go through all these other notices.
Again, with respect to what you are saying, fine. Maybe he can
spend 10 minutes, 20 minutes, 30 minutes, looking at your rules,
your notices. But what about the 54 other local, State and Federal
agencies that take exactly the same attitude?